Anthony Fisher and Secretary, Department of Social Services

[2015] AATA 399

[2015] AATA 399

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/5778
Re	Anthony Fisher
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	4 June 2015
Place	Brisbane

The decision under review is affirmed.

............................[Sgd]............................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Whether 20 impairment points – Whether continuing inability to work – Decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) sch 2

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

4 June 2015

INTRODUCTION

1. On 20 September 2013, Mr Anthony Fisher (“the applicant”) made a claim for

   
   

   disability support pension (“DSP”) having contacted Centrelink on 17 September 2013 about making a claim. I have to decide whether his claim should be granted.

   PRIOR DECISIONS

2. On 19 November 2013, a delegate of the Secretary made a decision to grant the claim for DSP from 17 September 2013. On 26 June 2014 a delegate of the Secretary reconsidered the decision of 19 November 2013 and made a decision to reject the claim for DSP. The applicant sought an internal review of that decision. On 28 July 2014, an Authorised Review Officer affirmed the decision to reject the claim for DSP. On 9 October 2014, the Social Security Appeals Tribunal (“SSAT”) affirmed the decision. The applicant seeks review of that decision by this Tribunal.

   LEGISLATION

   Qualification for Disability Support Pension

3. To qualify for DSP, the applicant must satisfy the requirements contained in s 94(1) of the Social Security Act 1991 (Cth) (“the Act”) as at the date of claim. Section 94(1) relevantly provided:

   (1) A person is qualified for disability support pension if:

   (a) the person has a physical, intellectual or psychiatric impairment; and

   (b) the person's impairment is of 20 points or more under the Impairment Tables; and

   (c) one of the following applies:

   (i) the person has a continuing inability to work;

   (ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system[.]

   Impairment Tables

4. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”) which commenced operation on 1 January 2012 and which was in force at all relevant times. An impairment rating can only be assigned if an impairment is permanent; that is, if it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.[1]

   [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(3)-(7).

   Relevant period for qualification

5. Clause 4(1) of sch 2 of the Social Security (Administration) Act 1999 (Cth) provides:

   (1) If:

   (a)  a person (other than a detained person) makes a claim for a relevant social                security payment; and

   (b)  the person is not, on the day on which the claim is made, qualified for the         payment; and

   (c)  assuming the person does not sooner die, the person will, because of the          passage of time or the occurrence of an event, become qualified for the payment          within the period of 13 weeks after the day on which the claim is made; and

   (d)  the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the social security payment.

6. The claim for DSP must be assessed as at the date of the claim or within 13 weeks of that date. There is no issue that this period is from 20 September 2013 until 20 December 2013 (“the relevant period”).  If the applicant qualified for DSP at any time within the relevant period, he will be entitled to payment of DSP from 17 September 2013 when he advised Centrelink of his intention to claim the pension.

   CONSIDERATION

7. I am satisfied the applicant has impairments for the purposes of

   
   

   s 94(1)(a) of the Act. These impairments are outlined in the report of Dr Alwan dated

   
   

   29 October 2013 and include a hearing loss condition (which she thought was otosclerosis), a mental health condition, pilonidal sinus and asthma. Dr Muscio in his report dated 27 March 2014 has also confirmed that the applicant has a hidradenitis suppurativa condition.

8. I will consider whether the applicant’s impairments attracted 20 points or more under the Impairment Tables at the relevant times.

   Mental health condition

9. I have reviewed the evidence concerning the mental health condition of the applicant who has, since 25 October 2013, been under the care of Dr Alwan, general practitioner. In a number of reports Dr Alwan opined that the applicant has ADHD or Adult ADHD.[2] Dr Alwan based that opinion on the fact that the applicant was treated for ADHD in his childhood. Dr Budd, paediatrician, wrote to Dr Alwan on 29 October 2013 to confirm that he last saw the applicant in 1998 who then had “characteristics of ADD-ADHD.”[3]  A report dated 14 September 1992 from Dr Gupta, paediatrician, contains a provisional diagnosis of ADHD. 

   [2] Exhibit A pp 189-199, 224-234; Exhibit F, Annexure A.

   [3] Exhibit A p 201.

10. Dr Alwan in giving evidence before this Tribunal reconsidered her diagnosis of ADHD. Dr Alwyn now considers that the applicant does not have ADHD: rather that he “may have Autistic Spectrum Disorder”.

11. Dr Alwan has sought advice from Dr O’Brien, consultant psychiatrist, on how to treat the applicant. On 26 March 2014 Dr O’Brien provided a report after he had the opportunity to interview the applicant by videoconference. The applicant informed Dr O’Brien that he was able to read the doctor’s lips clearly. In his report Dr O’Brien informed the applicant of treatment options and suggested referral to a psychologist as well as consideration of a medication trial at a later date. However, that report did not contain any diagnosis of a medical condition. Certainly, Dr Alwan accepts that the report of Dr O’Brien does not contain a diagnosis of a condition.

12. The diagnosis of a mental health condition is referred to in the Introduction to Table 5 – Mental Health Function (“Table 5”) contained in the Impairment Tables: 

    The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

13. There is no evidence of the applicant being diagnosed with a mental health condition by a psychiatrist or clinical psychologist. I find that there is no evidence that the mental health condition of the applicant has been fully diagnosed.

14. The Determination provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent.[4] There are a number of requirements that need to be satisfied before a condition can be regarded as permanent. One requirement is that “the condition has been fully diagnosed by an appropriately qualified medical practitioner”.[5] It is also necessary for the condition to be fully treated and fully stabilised.[6] The applicant’s mental health condition has not been diagnosed by a psychiatrist or a clinical psychologist, and accordingly is not fully diagnosed as required by the Determination. The previous diagnoses were of a provisional nature and were made by paediatricians and, in any event, relate to the condition of the applicant as a youth and cannot be regarded as an assessment of his condition during the relevant period.

    [4] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(3).

    [5] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(4)(a).

    [6] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(4)(b)-(c).

15. There is certainly no suggestion that the mental health condition has been fully treated.  Dr Alwan in her report of 6 January 2015 has not indicated any current treatment for the condition although future supportive treatment has been outlined.

16. The mental health condition of the applicant has not been fully diagnosed, fully treated and fully stabilised in the relevant period to enable an impairment rating to be assigned in respect of the condition.

    Hearing loss condition

17. Certainly the applicant has a hearing loss condition. Mr Butcher, an audiologist, has written a report dated 11 September 2013 in which he confirmed that there is a moderate/moderate severe mixed hearing loss bilaterally, with conductive element. Dr Bravo, an Ear, Nose and Throat surgeon, in his report dated 3 September 2013 has given his opinion that a probable cause for the hearing loss condition would be otosclerosis which would require surgical exploration for confirmation. Dr Bravo considered that definitive surgical correction for an otosclerosis condition is possible by stapedectomy. Dr Bravo also considers that the applicant’s hearing is amenable to rehabilitation with hearing aids.

18. Dr Alwan, the treating general practitioner, has indicated in her report dated 29 October 2013  that the applicant “needs further investigation by an ENT specialist”.  Until this initial process of surgical exploration has taken place I do not consider that the hearing loss condition has been fully diagnosed. I place great weight on the opinion of a specialist of Dr Bravo’s seniority that he is unable to confirm the diagnosis of the hearing loss condition without surgical exploration.

19. The applicant declines to consent to surgery because he considers that the procedure is “invasive”. However, the applicant has recently undergone a surgical procedure for his sinus condition.  Dr Alwan has not indicated that it would be reasonable for the applicant to decline surgical exploration: indeed she considers surgical exploration is necessary to confirm the diagnosis of the condition. The report of Dr Alwan was written after Dr Bravo’s report of 3 September 2013 which was provided to the applicant. Dr Alwan in her report acknowledges that she is aware of the specialist opinion of Dr Bravo.

20. The hearing loss condition of the applicant cannot in my view be assigned an impairment rating as it has not been “fully diagnosed” as required by s 6(4)(a) of the Determination. There are no cogent reasons advanced before me as to why the applicant will not undertake the procedure of surgical exploration as recommended by Dr Bravo and Dr Alwan so that a definitive diagnosis of the hearing condition can be obtained.

21. Even if the otosclerosis diagnosis were confirmed (which is not the case), the hearing loss condition of the applicant cannot be assigned an impairment rating as the condition has not been fully treated and fully stabilised in the relevant period. Dr Bravo in his report of 3 September 2013 has indicated that “definitive surgical correction for this condition is possible via stapedectomy”. Until this procedure is undertaken I do not accept that the condition can be regarded as fully treated. The applicant, who lives in a country town, asserts that he would have to travel to Sydney for the surgery; this is not my view a reason why treatment should not occur. In any event there is no evidence that the exploratory procedure cannot be undertaken closer to the home of the applicant. Dr Bravo indicates that the stapedectomy procedure can be expected to result in an improvement in functional capacity of the hearing of the applicant. There is no indication in the report of Dr Bravo or Dr Alwan that there is any risk in the procedure. There are no cogent reasons in evidence why the applicant will not undertake the stapedectomy procedure.

22. Whilst the applicant was fitted for hearing aids within the relevant period, he did not receive those hearing aids until after the relevant period. Dr Alwan in her report of 2 April 2014 indicated that the use of hearing aids commenced in March 2014. The applicant considers that he used them before then, but on the state of the evidence before me I am unable to make a finding that the applicant received them within the relevant period.

23. The applicant in his evidence stated that he used the hearing aids for six to eight weeks which he indicated was the period of time that he had agreed to use them. The tenor of the applicant’s evidence was that he used the hearing aids for a trial period. He no longer wears the hearing aids as he asserted that their use resulted in deterioration in his hearing. I accept the contention of the applicant that the hearing aids magnify background noise. However, Dr Armstrong has indicated that a period of 3 to 4 months may be needed before the hearing aids could be properly adjusted. Until this is done the condition cannot be fully stabilised.

24. The fact that the applicant now does not use hearing aids cannot in my view indicate that his hearing loss condition is fully treated and fully stabilised. In any event there was no treatment in the relevant period.

25. The hearing loss condition of the applicant has not in my view been fully diagnosed, fully treated and fully stabilised in the relevant period to enable an impairment rating to be assigned in respect of that condition.

    Hidradenitis suppurativa
    
    

26. Dr Muscio in his report of 27 March 2014 has confirmed that the applicant has hidradenitis suppurativa, which Dr Muscio has explained is “a condition of the scent producing sweat glands in the armpits and crotch area”.

27. The condition has not been previously assigned an impairment rating on the ground that it was only diagnosed and confirmed outside the relevant period. However, in my opinion it is fair to regard the condition as being diagnosed well before the relevant period.  This is because on 23 May 2013 Dr Mupudzi advised Centrelink that the applicant had a scrotal cyst.

28. The respondent has contended that an impairment rating cannot be assigned to the scrotal cyst condition as the condition was not fully treated during the relevant period.[7] However, Dr Muscio has indicated that it is very hard to treat the disease effectively as complicated medication often does not work and surgery is often unsuccessful as the disease is often recurrent despite its excision. In these circumstances I consider that it is fair to assign an impairment rating to the condition where a specialist has indicated that medication and surgery is often not successful to treat the condition, even though Dr Muscio has indicated that further surgery may be considered. I agree with Dr Armstrong who in her report of 11 April 2014 has indicated that the condition “could be rated as permanent and FDTS” (i.e fully diagnosed, treated and stabilised). I therefore conclude that I am able to assign an impairment rating to the hidradenitis suppurativa condition. 

    [7] Secretary’s Statement of Facts & Contentions, 24 February 2015 [67].

29. I consider that Table 14, which relates to functions of the skin, is the most appropriate Table to apply in assigning an impairment rating to the hidradenitis suppurativa condition. I appreciate that the applicant has made assertions about the offensive discharge from the affected areas. However, I am precluded by the directive in the Introduction to Table 14 from having regard to the self-report of symptoms alone and so I have considered the medical reports relating to the condition of the applicant. On 23 May 2013 Dr Mupudzi indicated that it is uncomfortable for the applicant to sit down for long periods of time. Dr Muscio made the following remarks about the condition:

    This condition can lead to the development of chronically discharging sores or sinus, which sometimes get quite pussy and sore. Anthony has a number of pits related to this disease, especially around his perineal area. …. It can be a very annoying disease.[8]

    [8] Exhibit A p 223.

30. I find that the hidradenitis suppurativa condition should be assigned a rating of five points under Table 14. The evidence before me indicates that there is a mild functional impact on daily activities requiring healthy, undamaged skin and that the condition meets the requirements of descriptor (b) in the Table for five points. The applicant has difficulty with walking and bending due to lesions in the perineal area. I do not accept the assertion of the nominee that she is required to perform drainage of his lesions on a daily basis as Dr Muscio has indicated that the sores can “sometimes” get pussy and sore. My finding is consistent with the assessment of Dr Armstrong that the condition caused, at most, a mild impairment worthy of a five point impairment rating under Table 14 of the Impairment Tables.

31. The state of the evidence before me does not warrant me assigning a rating of ten points under Table 14 to the hidradenitis suppurativa condition. I am prohibited by s 11(1) of the Determination from assigning an intermediate rating.

    Asthma
    
    

32. Dr Alwan in her report of 29 October 2013 indicated that the asthma condition of the applicant is controlled and causes a minimal or limited impact on ability to function. It would be appropriate to assign a rating of zero points under Table 1 for this condition.

    Pilonidal sinus
    
    

33. Dr Alwan in her report of 29 October 2013 also noted that the Applicant suffered from “infected pilonidal sinus”.  Dr Alwan indicated that the condition was generally well managed and caused minimal or limited impact on the Applicant’s ability to function. The condition cannot be assigned an impairment rating as the condition was not fully treated within the relevant period. It was after the relevant period that the applicant underwent excision of his pilonidal sinus complex. Dr M Muscio in his report of 27 March 2014 confirmed that he did not expect full healing to take place for several months. This was confirmed by Dr Alwan who indicated in her report of 2 April 2014 that following surgery, the condition would heal in approximately 8 – 12 weeks.

    Epididymitis
    
    

34. Dr Muscio in his report of 27 March 2014 has confirmed that the applicant has “mild chronic epididymitis”. Dr Muscio remarked that it is possible that the applicant “will experience some mild symptoms from this problem for many years”. A recent imaging report of 29 April 2015 confirms that the “left epididymal head is bulky and inhomogeneous”.[9]

    [9] Exhibit D.

35. I have concluded that the condition does not require any future treatment. There is no indication from the report of Dr Muscio that the condition requires any treatment. The epididymitis condition is not referred to in the claim of the applicant or the reports of Dr Alwan dated 29 October 2013 or 2 April 2014. 

36. I have concluded that an impairment rating can be assigned to the condition. The applicant contends that the condition should be assessed under Table 10. However, in my opinion there is no basis for the condition to be assigned a rating under Table 10 which relates to an impairment to the digestive or reproductive system functions: there is no medical evidence that this condition causes an impairment to any such function. I consider that the condition is appropriately rated under Table 14 and should be assigned a rating of zero points as there is no cogent medical evidence that the condition has a functional impact.

    Pain condition
    
    

37. Dr Alwan in her evidence has confirmed that the applicant has complained of “pain at various sites” but that this pain is “not clearly explained by examination”. There is no indication that a pain management clinic has reported on the condition. I have concluded that the condition cannot be rated as there is no diagnosis of the pain condition.

    Conclusion

1. The hidradenitis suppurativa condition of the applicant can be rated a total of five points under the Impairment Tables. During the relevant period the applicant did not satisfy

   
   

   s 94(1)(b) of the Act and on this basis alone he is not eligible for DSP. It is not necessary for me to consider whether the applicant had a continuing inability to work during the relevant period.

   DECISION

2. I affirm the decision under review.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

..........................[Sgd]..............................................

Associate

Dated 4 June 2015

Date(s) of hearing	29 April 2015
Advocate for the Applicant	Ms C Garside
Solicitors for the Respondent	Mr A Burgess, Sparke Helmore Lawyers